Sharma (Migration)

[2023] AATA 1465

Sharma (Migration) [2023] AATA 1465 (12 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Soniya Sharma
Mr Dinesh Sharma
Mr Darsh Sharma

CASE NUMBER:  2301738

HOME AFFAIRS REFERENCE(S):          BCC2022/2956356

MEMBER:Amanda Mendes Da Costa

DATE:12 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl 485.212(1) of Schedule 2 to the Regulations.

DECISION:The Tribunal considers the application of the second named and third applicants should be reconsidered on the basis they meet the secondary requirements for Skilled (Provisional) (Class VC) visas.

Statement made on 12 May 2023 at 8.15am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IELTS Test results provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 July 2022. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visas on 24 January 2023 because the first named applicant (the applicant) did not have the required English language proficiency.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl 485.212. Clause 485.212(1) requires that the application was accompanied by evidence that:

   ·the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212(1)(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).

3. As the applicant does not satisfy cl 485.232 or cl 485.233, cl 485.212(1) does apply.

4. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl 485.212(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).

5. The applicant has provided with an IELTS Test Report Form dated 11 February 2023 which show that the applicant’s English language test results are an overall band score of 6.0 with individual test scores as follows:

Listening         6.0

Reading          5.0

Writing            6.0

Speaking        6.0

1. The Tribunal notes that IMMI 15/062 provided that the minimum overall score required for an IELTS Test is 6.0 with minimum individual test score results of 5.0 for each of Listening, Reading, Writing and Speaking. Based on this information, the Tribunal is satisfied the applicant meets the English language proficiency requirements set out in IMMI 15/062.

2. Accordingly, the Tribunal is satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

3. On the basis of the above, the applicant meets the requirements of cl 485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

4. Given its about findings regarding the applicant, the Tribunal is satisfied that the second named and third named applicants meet the secondary requirements for the grant of the visa.

DECISION

1. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

   · cl 485.212(1) of Schedule 2 to the Regulations.

2. The Tribunal considers that the application of the second named and third named applicants should be reconsidered on the basis that they meet the secondary requirements for the grant of Skilled (Provisional) (Class VC) visas.

Amanda Mendes Da Costa
Member